Gujarat High Court

Thakor Budhaji Shakaraji vs The Competent Authority Dfc And ... on 16 March, 2023

Bench: Biren Vaishnav

    C/SCA/3342/2023                                JUDGMENT DATED: 16/03/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 3342 of 2023

                               With
           R/SPECIAL CIVIL APPLICATION NO. 19644 of 2022
                               With
           R/SPECIAL CIVIL APPLICATION NO. 19582 of 2022
                               With
           R/SPECIAL CIVIL APPLICATION NO. 19605 of 2022
                               With
           R/SPECIAL CIVIL APPLICATION NO. 20980 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
A.J.DESAI

and

HONOURABLE MR. JUSTICE BIREN VAISHNAV

==================================================

1     Whether Reporters of Local Papers may be allowed to               NO
      see the judgment ?

2     To be referred to the Reporter or not ?                           NO

3     Whether their Lordships wish to see the fair copy of the          NO
      judgment ?

4     Whether this case involves a substantial question of law          NO
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

==================================================
               THAKOR BUDHAJI SHAKARAJI
                         Versus
THE COMPETENT AUTHORITY DFC AND SPECIAL LAND ACQUISITION
                       OFFICER
==================================================
Appearance:
MR GM AMIN(124) for the Petitioner(s) No. 1,2
SAMARTH S AMIN(8897) for the Petitioner(s) No. 1,2


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      C/SCA/3342/2023                            JUDGMENT DATED: 16/03/2023




MR SAHIL TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
==================================================

 CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
       JUSTICE A.J.DESAI
       and
       HONOURABLE MR. JUSTICE BIREN VAISHNAV

                           Date : 16/03/2023
                       COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. Rule returnable forthwith. We have taken up for final

hearing by consent of learned advocates for the respective

parties.

2. In all these petitions, the prayer of the petitioners is to pay

additional compensation by applying Factor-2 of Schedule 1 of

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013.

3. All the parties have agreed that the issue arises in these

petitions has been decided by Coordinate Bench of this Court in

Special Civil Application No.14509 of 2017 and allied matters by

a common oral judgment dated 7.4.2022. The relevant

paragraphs of the common oral judgment of this Court read as

C/SCA/3342/2023 JUDGMENT DATED: 16/03/2023

under:

"9. In fact the petitioners in Special Civil Application No. 14509 of 2017, at paragraph 13 has raised a specific plea that the subject lands are agricultural lands. In the words of petitioners themselves, it reads : -

"13. The petitioners state that in the State of Gujarat as per the new Act though the award were declared in between, the State Government has now granted compensation by giving factor of 2. Petitioners state that even in cases where awards are declared. The new Act was made applicable and the benefits of the First Schedule of Factor 2 was granted where the land of rural area is required. The petitioners state that petitioners village is very small village and admittedly all the agricultural lands have been acquired and therefore it is under the rural area and therefore the factor-2 requires to be applicable and higher compensation requires to be paid to the petitioners and therefore the impugned action of not granting higher compensation is bad, illegal arbitrary and violative of Articles 14 & 19 of the Constitution of India."

10. It would be of benefit to note at this juncture itself that even in the award that has been passed, competent authority has justified these lands are agricultural land. Hence, it is too late in the day for the competent authority or the Railways to contend that lands in question are not agricultural lands but there are to be characterized as lands falling within urban agglomeration.

11. As already noticed hereinabove, at the cost of repetition that in respect of Ramnagar village, very same respondents have accepted the plea put forward by the petitioners therein namely that said land would fall

C/SCA/3342/2023 JUDGMENT DATED: 16/03/2023

within the rural area and have applied factor - 2 and awarded the compensation and said order of the respondents which was challenged in Special Civil Application No. 16027 of 2017 received a quietus from us today by order of even date and hence, we are of the considered view that contention raised by the respondent particularly the Railways that the lands belonging to petitioners are to be construed as falling in the urban area and not to treat the said lands as agricultural lands, requires to be rejected. Though, Ms. Archana Amin would contend that matter may be remitted back to the competent authority to decide the issue relating to the nature of land, this Court would have undertaken the said exercise, had there been any factual denial in the reply statement. However, in light of clear assertion made by the petitioners in their respective Special Civil Applications that lands owned by them are within the rural area and it does not partake the character of lands situated in an urban area and there being no denial except to the extent contending that lands are to be treated as urban lands, that too on account of government resolution dated 10.11.2016 which undisputedly has been quashed by this Court, railways would not be justified on their part of to shield behind the said resolution to contend that lands in question are situated in urban area or this re- examination by the competent authority. Infact, respondent No. 3 in his reply affidavit dated 13.11.2017 has very heavily relied upon the circular dated 10.11.2016 to contend that lands covered under these petitions would fall within the definition of urban area. At paragraph 10 of the said affidavit, it has been specifically contended that there was ambiguity with respect to the clarification as to which area would fall under urban area and which area would fall under the definition of rural area and as such clarification was sought for from the State Government and the State Government in its resolution dated 10.11.2016 clarified and concluded that the lands situated in three villages are to be treated as rural and remaining six village are to be treated as urban as per communication dated 18.01.2017 wherein circular / resolution dated 10.11.2016 has been relied upon. In other words, it has

C/SCA/3342/2023 JUDGMENT DATED: 16/03/2023

been the consistent stand of the beneficiary of the acquisition that lands are being classified as urban lands located in urban area in the background of government resolution which has since been set aside by the Coordinate Bench and affirmed by the Hon'ble Apex Court.

12. We are also perforced to observe that respondent No. 2 which is an instrumentality of the Sate having known that circular dated 10.11.2016 which has been relied upon to pass the award has since been quashed, ought to have been fair to the Court and to the otherside. On the other hand, a stand is taken by the learned Standing Counsel to contend that lands in question are to be treated as lands situated in urban area, which requires to be deprecated and accordingly, we deprecate.

13. For the reasons aforestated, we proceed to pass following

ORDER

(i) Special Civil Applications are allowed.

(ii) Respondent No. 1 is directed to pass award afresh by determining the compensation payable to the petitioners by applying factor - 2 as provided under section 26(2) of 2013 Act as the lands in question which have since been acquired is in rural area and compensation will have to be made accordingly. The fresh award shall be passed within an outer limit of eight weeks from today and compensation shall be paid within four weeks from the date of passing of the award."

4. Accordingly, in the light of the aforesaid decision, the

petitions are allowed with the direction that respondent No. 1 is

directed to pass award afresh by determining the compensation

C/SCA/3342/2023 JUDGMENT DATED: 16/03/2023

payable to the petitioners by applying Factor-2 as provided

under section 26(2) of 2013 Act as the lands in question which

have since been acquired is in rural area and compensation will

have to be paid accordingly. The fresh award shall be passed

within an outer limit of ten weeks from today and compensation

shall be paid within four weeks from the date of passing of the

award. The petitions stand disposed of. Rule is made absolute to

the aforesaid extent.